JUDAICA - Wisdom In Torah

stricted and regulated: the natural “hot anger” (Deut. 19:6) of
the victim’s next of kin is left at least some legal outlet.
The avenger’s rights were further restricted by being
made subject to and dependent on the prior judicial conviction
of the murderer – whether the murder was premeditated
or not was a question not for the avenger but for the court to
decide (Maim. loc. cit. 1:5, following Num. 35:12; “the manslayer
may not die unless he has stood trial before the assembly”;
but cf. Yad, loc. cit. 5:7–10). Opinions of later jurists were
divided as to what the avenger’s real function was; some held
that he initiated the proceedings, searching for the murderer
and bringing him to court for trial (Ramban; Nov.; Sanh. 45b;
Beit ha-Beḥirah ad loc.); some thought he should appear before
the court and participate in the proceedings as a prosecutor
(Nissim Gerondi, basing himself on the Targum pseudo-Jonathan
who renders go’el ha-dam as “claimant of blood”); others
relegated the avenger to the role of an executioner, it being his
right and privilege to execute the death penalty pronounced
by the court (Yad, loc. cit. 1:2; Ritba, Nov., Mak. 10b). That the
avenger had a locus standi in court appears probable from the
scriptural injunction that the court “shall decide between the
slayer and the blood-avenger” (Num. 35:24). While the slayer
would protest his innocence or, alternatively, his lack of malice,
the avenger would plead premeditation (cf. Malbim ad loc.); by
finding a lack of malice, the court is said to “protect the manslayer
from the blood-avenger” (Num. 35:25). When an alleged
murderer stood trial but was not convicted (either because of
lack of sufficient evidence or because the verdict had not yet
been given) and the avenger killed him, most jurists held that
while the killing was unlawful, the avenger was not guilty of
murder (Beit ha-Beḥirah, Sanh. 45b) – the proffered reason
being that the avenger had a better right to kill than even the
unintentional manslayer (Yad, loc. cit. 6:5), or that Scripture
itself recognized the avenger’s “hot anger” (Deut. 19:6) as negating
premeditation (Redak to II Sam. 14:7). However, if the
avenger killed the murderer within the walls of the city of refuge,
it was murder pure and simple (Tosef., Mak. 3:6).
Any next of kin entitled to inherit the deceased’s estate
qualified as an avenger (Yad, loc. cit. 1:2). Some later authorities
even include maternal relatives although they are not in
line for inheritance (Or Same’aḥ to Yad, loc. cit., against Maimonides).
Women also qualify as avengers (Yad, loc. cit. 1:3).
There are biblical instances of a father (II Sam. 13:31–38), a son
(II Kings 14:5–6), brothers (Judg. 8:4–21; II Sam. 2:22–23), and
also the king (I Kings 2:29–34) as avengers. It was later stipulated
that when no next of kin was available or came forward,
an avenger was to be appointed by the court (Sanh. 45b).
There is little doubt that legally the rights (and duties) of
the blood-avenger became obsolete (Ḥavvat Ya’ir 146), though
the killing by the avenger of a murderer is even today legally
regarded by some scholars as no more than unintentional
manslaughter (e.g. Keẓot ha-Ḥoshen ḥM 2). Apart from the
law, the right and duty of avenging the blood of one’s nearest
relatives are still deeply imprinted on the mind and religious
conviction of most Oriental (including many Jewish)
bloodguilt
communities; notwithstanding repeated efforts from various
quarters, blood vengeance is not, however, recognized in
Israeli law even in mitigating circumstances.
Bibliography: M. Duschak, Mosaisch-Talmudisches Strafrecht
(1869), 19f.; S. Mayer, Rechte der Israeliten, Athener, und Roemer,
3 (1876), 36–47; E. Goitein, Vergeltungsprincip im biblischen und
talmudischen Strafrecht (1891); G. Foerster, Das mosaische Strafrecht…
(1900), 9ff.; J. Weismann, Talion und oeffentliche Strafe im mosaischen
Rechte (1913); E. Merz, Blutrache bei den Israeliten (1916);
ET, 5 (1953), 220–33; J.M. Ginzburg, Mishpatim le-Yisra’el (1956),
356–74; EM, 2 (1965), 392–4; B. Cohen, Jewish and Roman Law, 2
(1966), 624–7; addenda 793f.; I. Warhaftig, Goel ha-Dam, Tehumim,
11 (1990), 326-360.
[Haim Hermann Cohn]
BLOODGUILT, liability for punishment for shedding blood.
The biblical concept of bloodguilt derives from the belief that
deeds generate consequences and that sin, in particular, is a
danger to the sinner. The most vivid examples of this belief
appear in connection with unlawful homicide, where innocent
blood (dam naki (naqi); Jonah 1:14) cries out for vengeance
(Gen. 4:10), is rejected by the earth (Isa. 26:21; Ezek. 24:7),
and pollutes it (Num. 35:33–34). Bloodguilt attaches to the
slayer and his family (II Sam. 3:28ff.) for generations (II Kings
9:26), and even to his city (Jer. 26:5), nation (Deut. 21:8), and
land (Deut. 24:4). The technical term for bearing bloodguilt
damo bo, or damo bero’sho, meant originally “his blood [remains]
in him/in his head” (Josh. 2:19; Ezek. 33:5), and the legal
formula mot yumat damav bo (Lev. 20:9–16) means that
in the case of lawful execution, the blood of the guilty victim
remains on his own person and does not attach itself to his
executioners.
The concept of bloodguilt in the Bible pervades all
sources, legal, narrative, and cultic, and entails the following
system of graded punishments for homicide.
Deliberate Homicide
The penalty is death by man (Gen. 9:6), or failing that, by
God (Gen. 9:5; cf. Lev. 20:4–5). A man can be either the direct
cause (Num. 35:16–21) or the indirect cause, e.g., a watchman
(II Kings 10:24; Ezek. 33:6), priests (Num. 18:1, 3), homeowner
(Deut. 22:8), or subordinate (I Kings 2:31–35). The punishment
of the murderer is primarily the responsibility of the
*blood-avenger (after court conviction, Num. 35:19; Deut.
19:12), but God is the final guarantor that homicide is ultimately
punished. His personal intervention is expressed by the
verbs דקפ (pakad (paqad), “attend to,” Hos. 1:4); םקנ (nakam
(naqam), “avenge,” II Kings 9:7); שרד (darash, “exact punishment,”
Ezek. 33:6); and בוש (בישה, heshiv, “return”) in the idiom
heshiv damim ʿal roʾsh (II Sam. 16:18; I Kings 2:33), which
indicates that God will turn back to the head of the slayer the
blood of the slain, the punishment the murderer believed he
had averted. In the Bible, it should be noted, these idioms
have become technical terms: the original phrase remains,
but without the crudity of its more primitive implications in
other ancient sources. God may postpone punishment to a
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3 773